i. Pennoyer v. Neff Hess v. Pawloski International Shoe Co. V. Washington specific general McGhee v. International Life Insurance Co

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1 I. Personal jurisdiction a. Jurisdiction is the power to render authoritative judgment b. Jurisdiction over the parties whether the court has jurisdiction to decide a case between particular parties or concerning the property. c. Two inquiries: i. Substantive due process the court must have power to act ii. Procedural due process the defendant must have both (1) adequate notice and (2) an opportunity to be heard d. Origins i. Pennoyer v. Neff 1. In rem jurisdiction relates to property; constructive notice is okay as well as attachment of property 2. In personum jurisdiction relates to the person requires personal service of process 3. Quasi in rem jurisdiction attaachment of the property in the forum state to gain personal jurisdiction on a personal (non-property) claim. 4. Service of process must be accomplished while the party is in the state. Exceptions: a. When the suit involves the status of a resident towards a non-resident. Example: marriage, not child support b. Business partnerships where one person is located out of state c. Creating corporations ii. Collateral attack defendant after default judgment may attack that judgment within defendant s own jurisdiction on the grounds that the default judgment jurisdiction did not have personal jurisdiction iii. Special appearance Hess v. Pawloski allows defendant to appear to challenge jurisdiction without consenting to personal jurisdiction. e. The Modern Formulation i. International Shoe Co. V. Washington personal jurisdiction test 1. Minimum contacts what is the quality and nature of the defendant s activity in the forum state? a. Specific jurisdiction does the case relate to the parties activities within the forum state? b. General jurisdiction party must have substantial contacts within the forum state. i. Individuals state of domicile ii. Corporations primary place of business or place of incorporation 2. Substantial justice 3. Fair play would it be unreasonably burdensome to make the defendant defend suit in the forum state? 4. a corporation s single or isolated items of activities in a state... are not enough to subject it to suit on causes of action unconnected with the activities there establishes basis for specific and general jurisdiction 5. That a corporation chooses to conduct activities within a state accepts a reciprocal duty to answer for its in-state activities in the local courts power should be limited to voluntary actions 6. Continuous, but limited activity in the forum state, such as an ongoing business relationship will support specific jurisdiction. Burger King v. Rudzewicz ii. McGhee v. International Life Insurance Co. also need to consider the burden and inconvenience to the defendant and the state interest in protecting the interest of its residents. iii. Hanson v. Denkla unilateral activity of one party does not avail related parties to the personal jurisdiction of another forum. (Beneficiaries move to Florida did not mean that the trust/trustee would be availed to Florida jurisdiction.) Must be some act by defendant to purposefully avail himself upon the privilege of conduction activity within the forum state invoking benefit and protection of that state s laws. f. In Rem Jurisdiction i. Shaffer v. Heitner 1. expands minimal contacts analysis to quasi in rem jurisdiction and abolishes quasi in rem jurisdiction; 2. expands minimum contacts analysis from corporations to individuals. g. Challenging Jurisdiction i. Do nothing collateral attack after the judgment. a. Benefit cheap; can challenge in your own jurisdiction b. Drawback if you do the collateral attack and it doesn t go your way, then you have waived your defense ii. Special appearance a. Now it may be termed a pre-answer motion (Rule 12b) b. Challenge in your answer followed by a motion to dismiss for lack of jurisdiction. Page 1 of 21

2 c. If you bring a pre-answer motion that does not include a challenge to personal jurisdiction, you have waived the right to that challenge. It is the same in your answer thresh hold issue that needs to be gotten out of the way early. If you don t then you have consented to the jurisdiction. d. What do you need to know to establish jurisdiction? i. Where are they incorporated ii. Do they have agents there iii. Do they own property there iv. How long have they been there v. How much business do they do there vi. Where is their principle place of business e. If you don t know this info, you get it through discovery. f. District court judge can have a preliminary hearing regarding underlying facts related to the jurisdiction at its discretion. If the jurisdiction hearing has too much disputed evidentiary material tied up in the facts of the case, the court may need to move to the trial and decide the jurisdiction during the trial h. Specific jurisdiction i. World Wide Volkswagen pleurality opinion: it may or may not be enough to interject an item into the stream of commerce with the knowledge that it will end up in the forum state. If stream of commerce theory isn t enough think about whether the plaintiff was reaching out to the forum state; critical to due process analysis... is that the defendant s conduct and connection with the forum State as such that he should reasonably anticipate being haled into court there. ii. Burger King finding that there were enough Florida contacts related to the controversy to satisfy the test. Defendants at times dealt directly with Burger King s Miami headquarters; they contracted with Burger King to have Florida law govern the franchise agreement; and they promised to send their franchise payments to Burger King s Florida address. Under the circumstances, the Court refused to attach importance to the fact that Rudzewicz had not been in the forum state. iii. Asahi Metals California s attempt to assert personal jurisdiction over the foreign defendant was unreasonable on balance. The Court found the interests of the plaintiff and the forum state to be slight, and Asahi s burden from defending in California severe. CONCURRENCE: putting goods into the stream of commerce, at least in substantial quantities constitutes purposeful availment. Stream o commerce is split. i. General jurisdiction No contacts casual single act continuous but limited substantial or pervasive or isolated contact No PJ No PJ SPJ SPJ GPJ j. Transient jurisdiction based on service within the forum of a nonresident defendant passing through the state, upheld by the Supreme Court in Burnham v. Superior Court k. Notice i. Mullane--Alternative means of notice, such as newspaper publication, may satisfy due process where individual notice is impracticable and the party seeking to bypass individual notice can demonstrate that (1) the suit is in the interest of the absentees, (2) they will be adequately represented by one before the court, and (3) the value of their individual interests is not too great. Where the identities and parties can be reasonably ascertained, however, individual notice is required. ii. FRCP 4 l. Long arm statutes state statute permitting state court to obtain jurisdiction over persons not physically present within the state at the time of service. Three types: (1) blanket, (2) enumerated, and (3) intermediate allowing courts discretion m. Venue Venue tells parties where they can or can not bring the suit. Purely statutory doctrine. Closely parallels personal jurisdiction. Asks about the connection between the venue, the litigation and the forum court. It locates a case within a particular district with a state. i. State level statutory doctrine; most often venue is in city or county where defendant resides ii. Federal 28 USC If any defendant resides in that district and all defendants reside in the state containing that district 2. if a substantial part of the events giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated in the district Page 2 of 21

3 II. 3. If at least one defendant is reachable in the district and no other district qualifies. Works in a case based solely on diversity to give venue to all defendants where one defendant has personal jurisdiction. In subject matter jurisdiction, it is in a district in which any defendant may be found (probably minimum contacts where they can be found.) 4. Corporations anywhere where there is sufficient minimum contacts district where it has substantial operations or any district in which it is incorporated. n. Forum non conveniens [T]he court stated that a plaintiff s choice of forum should rarely be disturbed. However, when an alternative forum has jurisdiction to hear the case, and when trial in the chosen forum would establish oppressiveness and vexation to a defendant out of all proportion to plaintiff s convenience or when the chosen forum is inappropriate because of consideration affecting the court s own administrative legal problems, the court may, in the exercise of its sound discretion, dismiss the case. 1. Is there an alternative forum where the case may be tried? 2. Given the existence of that forum is this forum so inconvenient that it makes sense to try the case somewhere else? 3. Does it make sense for this court to be deciding this case? Factors for the court to consider: 1. relative ease of access to sources of proof 2. availability of compulsory process for attendance of unwilling witnesses 3. cost of obtaining attendance of willing witnesses 4. possibility to view the premise, if view would be appropriate to the action 5. all other practical problems that make trial of a case easy, expeditious, and inexpensive 6. administrative difficulties flowing from court congestion 7. local interest in having localized controversies decided at home 8. the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action 9. the avoidance of unnecessary problems in conflict of laws or in the application of foreign law 10. the unfairness of burdening citizens in an unrelated forum with jury duty Subject matter jurisdiction a. In general i. Subject matter jurisdiction refers to a court s authority to decide a particular kind of controversy. Subject matter jurisdiction can be concurrent shared between several different kinds of courts or exclusive, restricted to a particular kind of court. ii. The United States Constitution sets out the permissible scope of the judicial power of federal courts in Article III, 2. It lists the following types of federal subject matter jurisdiction: 1. cases arising under" this Constitution, laws of the United States, and treaties (federal question jurisdiction); 2. cases affecting ambassadors and other official representatives of foreign sovereigns; 3. admiralty and maritime cases; 4. controversies to which the United States is a party; 5. controversies between states and between a state and citizens of another state; 6. cases between citizens of different states (diversity jurisdiction); 7. cases between citizens of the same state claiming lands under grants of different states; 8. cases between a state or its citizens and foreign states and their citizens or subjects (alienage jurisdiction) b. Federal question jurisdiction i. The well pleaded rule only if the federal issue appears on the face of a well pleaded complaint does it satisfy the requirements to be heard in federal court. Louisville and Nashville RR v. Mottley; TB Harms does the remedy arise out of the act or the claim require interpretation of the act? ii. 28 USC 1331 The district courts shall have original jurisdiction of all civil actions arising under the constitution, laws, or treatises of the United States c. Diversity jurisdiction i. 28 USC 1332 ii. Hawinks v. Masters Farms Plaintiffs bear the burden of proof in establishing jurisdiction 1. facial attacks on sufficiency of the complaints allegations as to SMJ 2. challenge to the actual facts upon which SMJ is based 3. Estate of a person is considered to have the same domicile as the deceased a. Domicile established where you live and where you intend to remain iii. Redner v. Sanders plaintiff who is resident of France, rather than a citizen, does not meet criteria for diversity jurisdiction iv. Saadeh v. Farouki alienage amendment intended only to eliminate SMJ of cases between a citizen and an alien living in the same state. Amendment not intended to create diversity jurisdiction where it did not previously exist. Page 3 of 21

4 d. Challenging jurisdiction i. Rule 12 b ii. Rule 12 g iii. Rule 12 h Personal vs. Subject Matter jurisdiction Direct challenge Waiver If D defaults on collateral attack? Personal jurisdiction By motion 12(b)(6) Yes12(h)(1) Yes (attack jurisdiction only, not merits) Pennoyer If no jurisdiction Plaintiff must find another forum with sufficient contacts Subject matter jurisdiction By motion 12(b)(1) Never 12(h)(3) Probably not (rarely arises) Plaintiff may refile in state court III. iv. How jurisdiction challenged: 1. Raised sua sponte by the court (e.g. Mottley and Saadeh) 2. Raised in Defendant s motion rule 12(b)(1) or 12(b)(6) 3. Raised in Plaintiffs filing Rule 8 provides that the plaintiff must allege in the complaint why the jurisdiction is inappropriate. e. Supplemental jurisdiction i. United Mine Workers v. Gibbs pendant jurisdiction when there is (1) a real federal claim, (2) issues are so closely related as to be part of the same case they fall under article III arising under and (3) the claims arise from the same common nucleus of operative facts. ii. 28 USC same case or controversy ; may include claims that involve joinder or intervention of additional parties; can t add a plaintiff who will destroy complete diversity if you are in federal court for diversity of citizenship f. Removal i. 28 USC 1441 any civil action in a state court where there is jurisdiction may be removed to a federal court in the same district; any claim arising out of a federal question shall be removable regardless of the citizenship or residency of the parties ii. Metropolitian Life v. Taylor a claim may be removed to federal court even if there is no federal question on the face of a well pleaded complaint so long as a relevant federal statutory provision preempts the state law. iii. 28 USC 1446 Procedure for removal iv. 28 USC 1447 v. Caterpillar v. Lewis court allows removal with incomplete diversity when the non-diverse party drops out of the case after the removal. This is because removal is not appealable until the final order and the court wants to avoid the duality of retrying a case that has already been decided. Choice of Law a. Swift v. Tyson used federal general common law sitting in diversity b. Erie RR v. Tomkins federal courts sitting in diversity must follow the substantive law of the state in which the are sitting; there is no federal common law in areas of state law; there is federal common law interpreting the constitution and federal statutes; substance v. procedure c. 28 USC 1652 d. Guarantee Trust v. York substance-versus-procedure test would not be adequate to resolve all issues arising under the Rules of Decision Act where a state law is both substantive and procedural in purpose, such as statutes of limitations. In Guaranty Trust the defendant argued that Erie required application of the state statute of limitations, which would have barred the action, while the plaintiff argued that federal law, under which the action was timely filed, governed. Agreeing with the defendant, the Supreme Court found the intent of the Erie doctrine to be that in diversity cases the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court. Under this outcomedetermination test, state law controls if the choice between state or federal law could be outcome-determinative in the case. e. Byrd v. Blue Ridge Rural Electric Cooperative federal court should follow state law when the state rule is bound up with the rights and obligations of the parties. Balancing test of the governmental interst behind the rules contending for application. f. Balance the source of the conflict (general equity practice, common law, statute, constitution) to determine which law governs Page 4 of 21

5 IV. g. Hanna v. Plumer federal procedural rules (unless found constitutional and invalid under the Rules Enabling Act) are not overridden by state law or policy. Thus, Erie does not control when there exists an applicable federal rule that conflicts with the state law or policy Incentives to litigate a. Damages i. Honda Motor Co. v. Oberg to the extent that the state law prohibits judicial review of damage awards, the law violates due process ii. State Farm v. Campbell 1. Reprehensibility a. Was the harm physical or economic? b. Did the tortuous conduct evince an indifference to or a reckless disregard of the health and safety of others? c. Did the target of the conduct have financial vulnerability? d. Was the conduct involved repeated actions or was an isolated incident? e. Was the harm the result of intentional malice, trickery, or deceit, or a mere accident? 2. The disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award f. Single digit multipliers of compensatory damages are more likely to be in the constitutional range. g. Some cases may warrant going beyond a single digit multiplier. h. Is the wealth of the defendant relevant? Can t justify an otherwise unconstitutional punitive damage award. 3. The difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. iii. US Const. Amend. XIV Sec. 1 b. Injunctive and Declaratory Relief i. Sigma Chemical in order to qualify for injunctive relief, you must show: 1. There is a balance of hardships 2. There is no adequate legal remedies 3. Decisions regarding injunctive relief better made by judge than jury 4. Damages favored over injunctions courts don t like enforcement problems ii. 28 USC 2201 allows declaratory judgments as final judgments iii. 28 USC 2202 allows for further relief based on declaratory judgment iv. FRCP 57 the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where appropriate c. Provisional Relief occurs when if the claim will be nullified without immediate relief. i. Balancing harms how likely is the plaintiff to win on the merits and granting the injunction is in the public interest. ii. Inglis & Sons Baking criteria for judgement 1. Will the plaintiff suffer irreparable injury if injunctive relief is not granted 2. Will the plaintiff probably prevail on the merits 3. In balancing equities, will the defendant not be harmed more than the plaintiff is helped? 4. Is granting the injunction in the public interest? 5. Decision can not be final because: a. May be insufficient evidentiary record b. Due process right to a jury trial c. Fast tracking the trial may prejudice one party d. There is a risk that the preliminary injunction may end up being a final order (i.e. if group gets preliminary injunction barring city from preventing it from having a rally, the city has no recourse after the rally is held) e. In order to avoid duplication, findings in the preliminary hearing may become part of the record for trial. 6. Standard of review a. Erroneous legal standard b. Abuse of discretion iii. Temporary Restraining Order 1. Can be issued without notice to the other party if the requesting attorney certifies that either s/he tried to give notice and coult not or there is some reason why notice should not be given 2. There must be a risk of immediate and irreparable harm 3. Restraining order will issue and hold everything in place until the preliminary hearing Page 5 of 21

6 iv. Fuentes v. Shevin declares unconstitutional sheriff seizure of property ex parte making the owner file suit for its return violation of due process; potential for mistake, abuse, inefficiency, unequal bargaining power; infringement on fairness, dignity, and respect for people as individuals v. FRCP 65 V. Pleadings a. Complaints i. FRCP 3 a civil action is commenced by filing a complaint with the court ii. FRCP 8 1. (a) claims for relief (1) short and plain statement of jurisdiction; (2) short and plaint statement of the claim showing entitlement to relief; (3) a demand for judgment for the relief the pleader seeks 2. (b) Defenses denials: general denials allowed subject to Rule (c) Affirmative defenses: accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. 4. (d) Effect of failure to deny averments are admitted if not denied 5. (e) Pleadings to be concise and direct; parties may plead in the alternative 6. (f) All pleadings shall be construed so as to do substantial justice iii. FRCP 9 Pleadings Special Matters 1. (a) capacicty-- iv. FRCP 12(b) pre-answer motions asserting defenses for: 1. lack of SMJ 2. lack of personal jurisdiction 3. improper venue 4. insufficiency of process 5. insufficiency of service of process 6. failure to state a claim upon which relief can be granted 7. failure to join a party under rule 19 v. Haddle disputes regarding factual allegations are not part of a 12(b)(6) motion; the court can convert a motion to dismiss into a motion for summary judgment sua sponte vi. FRCP 11 standard of conduct is objective reasonableness b. Responding to the Complaint i. Defendant may 1. Do nothing 2. File Pre-Answer motion according to rule 12 a. Preliminary hearing b. If denied has 10 days to file answer (Rule 12(a)(4)(A)) 3. Answer (in 20 days if service, or 60 days with waiver of service) ii. FRCP 8 Defendant may 1. Admit the allegation 2. Deny the allegation 3. Neither admit or deny the allegation for lack of information (acts as denial) 4. Defendant MUST include affirmative defenses in the answer 5. Pre-answer motions waived if not filed before the answer SMJ is NEVER waived (Rule 12(h)(3)). Pre-answer motions should be filed concurrently iii. FRCP 11(b)(4) iv. FRCP 12 v. Zielinski v. Philadelphia Piers defendant issued blanket denial; rule 8 says you should specify exactly what you are admitting and denying; this is to prevent unfair surprises at trial; there should be no unfair surprises at trial. vi. Layman v. Southwestern Bell affirmative defenses are those facts not included in the allegations necessary to support the plaintiff s case; easement is an affirmative defense and must be included in the answer rather than a general denial. vii. Ingram v. United States Central policy is unfair surprise; Things to consider when determining whether something is an affirmative defense: 1. Whether the matter at issue can fairly be said to constitute a necessary or extrinsic element of the plaintiff s cause of action 2. Which party, if either, has better access to the relevant information 3. Policy considerations: should the matter be indulged or disfavored 4. Certain allegations in Rule 8 and fraud, statute of frauds, statute of limitations, truth in slander and libel Page 6 of 21

7 VI. c. Amendments i. FRCP 15(a) a party may make amendments: 1. before a responsive pleading is served 2. if no responsive pleading is permitted and the action has not been placed on the trial calendar: within 20 days of service 3. by leave of the court leave shall be freely given when justice so requires 4. by written consent of the adverse party 5. Response to amendment shall be made within the time left for the pleading or 10 days, whichever is longer ii. Beeck v. Aquaslide rule 15 places the burden on the non-moving party to show that the amendment will cause undue hardship iii. FRCP 15(c) amendments to pleadings relate back to the original pleading when 1. relation back is permitted by the law that provides the statue of limitations applicable to the action, or 2. the claim or defense asserted in the amended pleading arose out the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading 3. the amendment changes the name of the party or the naming of the party against whom a claim is asserted iv. Moore v. Baker the critical issue under rule 15(c) is whether the original complaint gave notice to the defendant of the claim now being asserted; the amendment must rely on the same facts as the original complaint to arise out of the same conduct, transaction or occurrence and therefore relate back to the original claim v. Bonerb v. Richard J. Carbon Foundation if the litigant has been advised at the outset of the general facts from which the belatedly asserted claim arises, the amendment will relate back even though the statute of limitations may have run in the interim. TEST: an amendment which changes the legal theory of the case is appropriate if the factual situation upon which the action depends remains the same and has been brought to the defendant s attention by the original pleading provided no showing of undue hardship on the nonmoving party or undue delay or bad faith on the part of the moving party. Timing is key non-moving party should still have time for discovery. Discovery a. Scope and limits i. FRCP 26(b) describes what may be discovered under the federal rules. Unless discovery has been otherwise limited by a protective order of the court, a party may discover any matter that is: (1) relevant to a claim or defense; (2) reasonably calculated to lead to discovery of admissible evidence; (3) not privileged; (4) not constituting work product (A special showing is required for discovery of work product prepared or acquired in anticipation of litigation or for trial.) ii. Davis v. Precoat Metals information regarding other employees complaints was discoverable so long as the requests were narrowly tailored to the specific claims of the case; INTERLOCUTORY APPEAL IS RARE IN DISCOVERY CASES iii. Steffan employee fired because of statements he made admitting homosexuality was not required to answer questions regarding whether he had engaged in homosexual conduct since the firing was based on the comments and not the conduct iv. FRCP 26(b)(1) and (2) anything that is relevant to a claim or defense and is not unreasonably cumulative or duplicative or obtainable from some other source that is more convenient, less burdensome, or less expensive is discoverable. The burden or the expense of the proposed discovery must not outweigh its likely benefit taking into account the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. v. FRCP 26(c) provides for protective orders on information requested in discovery. vi. Marrese v. American Academy of Orthopedic Surgeons two ways disputes regarding discovery come about: (1) protective order request, or (2) motion to compel. TEST: (1) compare the hardship to the party against whom the discovery is sought, if discovery is allowed, with the hardship to the party seeking discovery if the discovery is denied; (2) consider the nature of the hardship as well as the magnitude and thus give more weight to public interest than private interests; (3) consider the possibility of reconciling the competing interest through a carefully protected restraining order b. Further limits i. Upjohn v. United States lower court uses control group test for corporate privilege if the employee is a high enough level manager that they would be involved in deciding the actions the company takes based on legal advice, they are considered part of the control group and thus subject to attorney client privilege. SCOTUS disagrees. Guidelines from Upjohn: 1. Communication must be confidential 2. It must be clear that the communication is with an attorney Page 7 of 21

8 VII. 3. Communication must be for the purpose of seeking legal advice 4. Communication must be regarding actions within the scope of the employment ii. Hickman v. Taylor establishes protection of attorney work product. The current version of FRCP 26(b)(3) essentially codifies the case of Hickman v. Taylor, 329 U.S. 495 (1947), in which the Supreme Court recognized a common law qualified immunity of work product from discovery. In Hickman, the Court stated that when the discoverer of work product shows that production is essential to preparation of his case and that denial of discovery would cause hardship because witnesses are no longer available or can be reached only with difficulty, production of relevant and non-privileged facts... in an attorney s file should be allowed. 1. Prepared in Anticipation of Litigation or for Trial Immunity is limited by FRCP 26(b)(3) to materials prepared in anticipation of litigation or for trial. Most courts add that the primary purpose of preparing the documents must have been to assist in such litigation. Thus, documents prepared for ordinary business purposes (e.g., a routine accident report), public regulatory requirements (e.g., statutorily-required report to police of automobile accidents involving injuries), or other nonlitigation purposes (e.g., self-evaluation) fall outside the Rule. 2. Documents and Tangible Things--The Court in Hickman emphasized that although the written witness statements and the attorney s memoranda were not discoverable on a bare demand, the discoverer was free to obtain the facts gleaned by discovery. The qualified immunity for work product does not protect against discovery of facts which may be construed as intangible things contained in the work product, including the identity of fact witnesses or the existence of the protected documents and things. However, federal courts have ruled that the discoveree may not be compelled to reveal facts to the extent that he is essentially recreating the protected document for the discoverer. Although witness statements qualify as work product, FRCP 26(b)(3) expressly provides that a party or witness may on demand obtain a copy of his own substantially verbatim statement concerning the subject matter of the action. 3. Party s Representative --As used in FRCP 26(b)(3), representative includes a party s attorney, consultant, surety, indemnitor, insurer, or agent. 4. Undue Hardship-- Hickman demonstrates that the undue hardship requirement may be satisfied when important facts are exclusively in the control of the discoveree such that the party seeking discovery has no other reasonable access to the information. For example, undue hardship may exist where: (1) a witnesses died, moved beyond the reach of compulsory process, lost his memory, deviated from his prior testimony or refused to cooperate; or (2) evidence that has physically disappeared or been altered is reflected in work product, such as photographs of skid marks or conditions at the scene of an accident. [6] Opinion Work Product-- FRCP 26(b)(3) provides what appears to be an absolute immunity for opinion work product, defined as mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. iii. FRCP 26(b)(3) iv. FRCP 26(b)(5) need to provide a showing of why the document is privileged c. Discovery procedure and methods i. FRCP 26(a)(1)-- Basic information covered by FRCP 26(a)(1) includes: 1. (1) the identity of possible fact witnesses that may be called at trial; 2. (2) identification of documents and other tangible items in the possession, custody or control of a party, that the disclosing party may use to support its claim or defenses, 3. (3) computation of damages claimed, making available for inspection and copying... evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered. 4. (4) insurance policies that may be used to satisfy part or all of a judgment. 5. Excluded from FRCP 26(a)(1) are witnesses and documents that will either be used solely for impeachment or will not be used at trial. ii. FRCP 26(a)(2) iii. FRCP 26(d) timing and sequence of discovery iv. FRCP 26(f) conference of parties; planning for discovery Resolution without trial a. Defaults, Dismissals and Settlements i. FRCP (a) voluntary dismissal a. FRCP 41(a)(1) provides that the plaintiff may dismiss once without leave of court by filing notice of dismissal before an answer or motion for summary judgment is served upon the plaintiff. Thus, a FRCP 12(b) motion to dismiss the complaint does not cut off plaintiff s right to nonsuit unless the motion is converted into a summary judgment motion by the offer of supporting materials outside the pleadings. Following service of Page 8 of 21

9 an answer or motion for summary judgment, plaintiff may voluntarily dismiss only by stipulation of the parties or by order of the court upon such terms and conditions as it deems proper. [FRCP 41(a)(2)] Unless the court specifies otherwise, an initial voluntary dismissal is without prejudice. Federal courts are empowered by FRCP 41(d), however, to require a plaintiff who reinstitutes his action to reimburse the parties for the costs of the previously dismissed action. Most jurisdictions follow a two-dismissal rule, by which a second voluntary dismissal is with prejudice. The second thus operates as an adjudication upon the merits with whatever preclusive effect is given judgments by the law of the rendering jurisdiction. b. Most commonly occurs because of settlement c. Dismissal without prejudice unless the case has been vol. dismissed before 2. (b) involuntary dismissal a. Involuntary dismissal or compulsory nonsuit is an analogous remedy for the defendant when the plaintiff fails to prosecute her claims or to obey court rules or orders. Disobedience that would justify dismissal also often consists of litigation delays, or failures to appear, respond or take other required action.involuntary dismissals are with prejudice to reinstitution of the action in the same court, unless otherwise provided or unless grounded on failure of the plaintiff to meet any precondition set forth in FRCP 41(b): jurisdiction; proper venue; or joinder of a party under FRCP 19. A dismissals based on a plaintiff s failure to satisfy such preconditions does not operate as an adjudications on the merits. b. Usually acts as adjudication on the merits even though it is not ii. FRCP 55 FRCP 55 authorizes the clerk to enter a default when it appears from the docket or is shown by affidavit of the claimant. Entry of default is simply a notation of the fact of default and an interim step towards the entry of a default judgment. FRCP 55(c) authorizes the court in its discretion to set aside an entry of default upon good cause shown. iii. Kalinauskas v. Wong sealed settlement agreements may sometimes be opened in the interest of justice; underlying facts rather than the terms of the settlement are available. b. Voluntary and Court-Ordered Mediation i. Types 1. Arbitration neutral person renders a decision either binding or non-binding 2. Mediation facilitation of negotiation; helps parties overcome barriers a. Therapy model mediator and parties usually without lawyers; talks out issues; discussion of the underlying relationship b. Bargaining model neutral with parties and lawyers; mediator sets out ground rules; each side tells story then time for questions and clarification; parties separate into separate rooms and mediator goes between rooms. 3. Early neutral evaluation cases sent out to a neutral who hears both sides and renders a nonbinding judgment; basically serves to let you know how good your case is and encourage settlement 4. Summary jury trial mock jury with mock verdict to give a sense of the strength of the case ii. FRCP 16 encourages all district courts to refer cases to ADR; all other litigation deadlines run while ADR takes place. Majority of federal cases get referred to ADR iii. Nick v. Morgan Foods defendant sanctioned for refusal to participate in mediation in good faith. c. Summary Judgment i. FRCP 56 A motion for summary judgment may be supported by the pleadings, discovery documents, affidavits, and any other materials that present facts that would be admissible at trial. Hearsay, speculation, conclusions of law, conclusory ultimate facts, and promises that the necessary evidence will be offered at trial therefore cannot support a motion for summary judgment, even when presented by an otherwise proper affidavit. If movant meets his burden of production that there exists no triable issue of fact, in order to avoid a finding of summary judgment, the opposing party may not rest upon the mere allegations or denials of his pleading but must set forth specific facts showing that there is a genuine issue for trial. [FRCP 56(e)] Alternatively, the opposing party may present an affidavit under Rule 56(f) stating why he cannot state specific facts in opposition to summary judgment at the present time, without adequate time for discovery. The reasonableness of plaintiff s request for time is a crucial factor in the exercise of the court s discretion. If the movant for summary judgment fails to meet his burden of production, the opposing party need not do anything as entry of summary judgment is not proper in the absence of a prima facie showing that there is no genuine dispute of material fact. ii. Lundeen v. Cordner opposition to motion for summary judgment must meet the issues raised and supported by the other party to show that there is a genuine issue of material fact. iii. Cross v. United States summary judgment is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions. A Page 9 of 21

10 VIII. judge may not on MSJ draw fact inferences. Such inferences must be drawn at trial. Consider the importance of calling an adverse party before a jury and having the witness examined in the presence of the jury. iv. Celotex v. Catrett 1. The moving party can meet the standard for summary judgment by: a. Affirmative evidence negativing an essential element. b. Pointing out the absence of evidence establishing an essential element c. Plaintiffs have a higher burden b/c they must establish all elements of the case to qualify for summary judgment; defendants merely establish that one element does not fit. 2. Summary judgment encouraged by SCOTUS Jury trial a. The right to a jury trial i. FRCP 38 Jury trial of right 1. (a) Right Preserved 2. (b) Demand for jury trial 3. (c) Specification of issues 4. (d) Waiver ii. U.S. Const. Amend. VII In suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall otherwise be reexamined in any court iii. Chauffeurs, Teamsters, and Helpers, Local 391 v. Terry 1. To determine whether a particular action will resolve legal rights, we examine both the nature of the issues involved and the remedy sought. First we compare the statutory action to the 18 th century actions brought in the courts of England prior to the merger of the courts of law and equity. Second, we examine the remedy sought and determine whether it is legal or equitable in nature. 2. Characterization of damages a. Money damages traditional form of relief in courts of law b. Damages are equitable where they are restitutionary c. A monetary award incidental to or intertwined with injunctive relief may be equitable. 3. Brennan (conc.) the nature of the remedy is more important than the nature of the right, so there is no point in conducting the first part of the test iv. Judges, not juries decide significant patent issues v. Aamoco Oil v. Torcomian 1. It has long been settled that neither the joinder of an equitable claim with a legal claim nor the joinder of a prayer for relief for an equitable relief with a claim for legal relief as to the legal claim can defeat an otherwise valid seventh amendment right to a jury trial. 2. It is settled that even an equitable main claim cannot preclude a jury trial on a legal counterclaim, at least where the counterclaim is compulsory. 3. Once there is a legal claim there must be a jury trial! May separate out so that judge hears equitable claim and jury hears legal claim. The jury should hear the legal claim first and to the extent that the facts overlap with the equitable claim, the judge is bound by the juries findings. 4. Denial of a jury trial in a case where the court could not have properly granted the opposing party a directed verdict results in reversible error. b. The role of the jury i. Judge acts as a filter for the jury trial. Judge is filter Claim goes in Jury deliberates unknown black box Verdict out ii. Dobson v. Masonite Corp. Interpretation is always a question of fact. Drawing a legal conclusion about the facts by application of rules to the facts requires that the facts first be found. iii. Tactical Considerations Page 10 of 21

11 1. Institutional concerns a. Bench trial faster than jury trial b. Defendant who knows plaintiff needs fast trial may demand jury trial to force settlement c. May want to wait longer for the trial if the injury is degenerative 2. Psychological concerns a. Similarities outweigh differences b. Considerations: i. Nature of the case ii. Characteristics of the parties and witnesses iii. The passions that trial may arouse iv. The type of jurors likely to be chosen v. Background and predilections of the judge vi. Counsel s effectiveness with judge or jury 1. Less concentration on form with judge trial 2. Better indication of how case is going with judge trial attorney can refocus testimony because of this iv. Reid v. San Pedro, LA & Salt Lake RR limitations on rational inferences; in order for the plaintiff to prevail it was essential for her to show by the preponderance of the evidence that the cow entered the right of way through the broken fence. The respondent failed to do so. The verdict rendered on the first cause of action is not supported by the evidence, and the trial court should have directed a verdict for the appellant on that cause of action in accordance with appellant s request. c. Procedural controls i. Burdens 1. Burden of production requires the part to produce to find and present evidence in the first place. Party can loose before trial if they fail to demonstrate that a reasonable trier of fact could find in her favor. Summary judgment based on this burden. For some affirmative defenses the defendant has the burden of production 2. Burden of persuasion defines the extent to which a trier of fact must be convinced of some proposition in order to render a verdict for a party who bears it. In civil trials it is the preponderance of the evidence, more probable than not or more likely than not 0 % (D) 50% 100% (P) ii. Directed verdict a judge should direct a verdict only if there is no rational basis for a jury to find in favor of the party against whom the verdict is directed. iii. JNOV essentially a late ruling on an earlier motion for judgment as a matter of law. Same standard as directed verdict: there is no legally sufficient evidentiary basis to find for the party against whom the motion is made. iv. Why wait to grant JML until after the verdict? 1. Respect for juries role 2. Time saving in case of appeal won t have to redo the trial. v. FRCP 50 (p. 120) 1. (a) JML a. party has been fully heard on an issue b. There is no legally sufficient evidentiary basis for a reasonable jury to find for that party c. Court may determine the issue and grant a motion for JML against that party with respect to a claim or defense that can not under controlling law be maintained or defeated without a favorable finding on that issue d. Motion may be made at any time before submission to the jury Page 11 of 21

12 2. (b) Renewing motion after trial if motion for directed verdict not granted before trial movant may renew motion no later than 10 days after entry of verdict and may alternatively request or join a motion for a new trial under rule 59. The court may a. Allow the judgment to stand b. Order a new trial c. Direct entry of judgment as a matter of law or d. If no verdict was returned i. Order a new trial or ii. Direct entry of JML 3. (c) Conditional Rulings the trial court shall rule on both motion for JML and motion for new trial in case on appeal JML is reversed; the case shall then proceed to new trial unless the appellate court has otherwise ordered. 4. (d) If JML is denied and appealed, the Appellee may assert grounds for a new trial vi. PA RR v. Chamberlain where proven facts give equal support to each of two inconsistent inferences, neither of them being established, judgment as a matter of law must go against the party upon whom the necessity of sustaining one of these inferences as against the other, before he is entitled to recover. IX. d. New trial i. FRCP 59 (p. 137) 1. (a) Grounds a. Flawed procedures leading to a verdict i. Error in admission or exclusion of evidence ii. Jury tampering b. Flawed verdict unjustifiable trial result: verdict not supported by weight of evidence. c. Judge must be certain he is not substituting his own judgment for that of the jury. 2. (b) Time within 10 days of entry of judgment 3. (d) On courts initiative new trial may be ordered within 10 days 4. (e) Motion to alter or amend a judgment shall be filed no later than 10 days after entry of judgment ii. Lind v. Schenley Ind. Sales manager for liquor company alleges breached oral contract for increase of pay and sales commissions. 1. Motion for a new trial usually non-reviewable, but may be reviewable on narrow abuse of discretion grounds 2. While the trial judge has a responsibility for the result at least equal to that of the jury he should not set aside the verdict as contrary to the weight of the evidence and order a new trial simply because he would have come to a different conclusion if he were the trier of facts. Since the credibility of witnesses is peculiarly for the jury it is an invasion of the jury s province to grant a new trial merely because the evidence was sharply in conflict. The trial judge, exercising a mature judicial discretion, should: a. review the verdict in the overall setting of the trial, b. Consider the character of the evidence and the complexity of the legal principles or simplicity of the legal principles the jury was bound to apply c. Abstain from interfering with the verdict unless it is clear that the jury has reached a seriously erroneous result. d. Judge s duty is to see that there is no miscarriage of justice. 3. Where the trial is long and complicated and deals with a subject matter not lying within the ordinary knowledge of jurors a verdict should be scrutinized more closely by the trial judge than is necessary where the litigation deals with material which is familiar and simple, the evidence relating to ordinary commercial practices. Respect for judgments a. Repose seek to end disputes even if the resting condition is less than optimal b. Claim preclusion/res judicata i. Forbids a party from litigating a claim that should have been raised in former litigation ii. Goals: 1. Efficiency 2. Finality 3. Avoidance of Inconsistence iii. Questions to ask: 1. Could the claim have been brought? 2. Should the claim have been brought? iv. Heaney v. Board of Trustees of Garden Valley School District Page 12 of 21

13 1. The former adjudication concludes parties and privies not only as to every matter offered and received to sustain or defeat the claim, but also as to every matter which (1) might and (2) should have been litigated in the first suit. 2. Litigation which is repetitious or which is inefficient by virtue of needless fragmentation should not be tolerated because it unnecessarily burdens both the judicial system and the party who must respond 3. Efficiency requires that all claims to relief based upon the same underlying transaction be pursued in a single action unless evidence bearing upon one aspect of the case may be unduly prejudicial with respect to another. The loss of efficiency in such circumstances may be tolerated to serve the ends of justice. 4. Dissent: What factual grouping constitutes a transaction is to be determined pragmatically giving weight to such considerations as to whether the facts are related in time, space, origin, or motivation and whether taken together they form a convenient trial unit, an whether their treatment as a unit conforms to the party s expectations or business understandings or usage v. 28 USC 1738 Full faith and credit the acts of the legislature of any state, territory, or possession of the United States, or copies therof, shall have the same full faith and credit in every court within the United States and its territories and possessions as they have by law or usage of such state, territory, or possession from which they are taken. vi. Frier v. City of Vandalia 1. One suit precludes a second where the parties and the cause of action are identical 2. Causes of action are identical where the evidence necessary to sustain a second verdict would sustain the first. 3. Two suits may entail the same cause of action even though they present different legal theories and the first suit operates as an absolute bar to subsequent action not only as to every matter which was offered and received to defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose 4. The ground for preclusion is potentially broader under the same transaction theory than the same evidence theory. 5. Claim preclusion serves to impel parties to consolidate all closely related matters into one suit when the facts and issues of all theories of liability are closely related, one case is enough vii. FRCP 13(a) Compulsory counterclaims (p. 38) 1. A pleading shall state as a counterclaim any claim which at the time of the serving the pleading the pleader has against any opposing party, if it arises out of the same transaction or occurrence that is the subject matter of the opposing party s claim and does not require for adjudication third parties of whom the court can not acquire jurisdiction. viii. Martino v. McDonalds because Martino filed no pleading, rule 13(a) does not apply; however the doctrine of res judicata may apply; 1. The principle of res judicata treats judgment on the merits as an absolute bar to relitigation between parties and those in privity with them of every matter offered and received to sustain or defeat the claim or demand and to every matter which might have been received for that purpose. 2. consent judgment may have a res judicata effect where it is accompanied by findings of fact and conclusions of law that go to the merits of the controversy. 3. Res judicata preserves the integrity of judgments and protects those who rely on them. 4. When facts form the basis of both a defense and a counterclaim, the defendant s failure to allege these facts as a defense or a counterclaim does not preclude him from relying on those facts in an action subsequently brought by the plaintiff against him. ix. On the merits 1. Courts sometimes state that claim preclusive effect should attach to judgment on the merits x. Gargallo v. Merill Lynch Does involuntary dismissal serve as judgment on the merits for the purpose of res judicata? Yes. Should the involuntary dismissal with prejudice of a federal claim in state court serve as judgment on the merits for purposes of res judicata? No. The state court lacked valid SMJ and therefore could not render a final verdict on the issue. xi. FRCP 41(b) Effect of involuntary dismissal: For failure of the plaintiff to prosecute or to comply with these rules or any order of the court a defendant may move for dismissal of the action. Unless the dismissal order otherwise specifies, it shall serve as adjudication on the merits, except for dismissal for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 xii. Semtek Intl. Inc. v. Lockheed Martin Corp. when a federal court sits in diversity, the claim preclusive effect of judgment should be the same as if it was in state court except where that would be incompatible with federal interests. c. Issue preclusion/collateral estoppel i. Issue involved in a claim has already been litigated and thus may not be re-decided in any subsequent litigation between the same parties. Page 13 of 21